State Central Authority and Koehler
[2014] FamCA 351
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & KOEHLER | [2014] FamCA 351 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – where it is conceded the child has been wrongfully retained in Australia – whether there is a grave risk that the return of the child to Germany would expose the child to psychological harm or otherwise place the child in an intolerable situation – mother’s mental health problems and effect on her capacity to care for the child considered – where the exercise of discretion under regulation 16(3) enlivened –no order made for the return of the child to Germany – application for return refused. |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Family Law (Child Protection Convention) Regulations 2003 (Cth) |
| De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 Director-General, Department of Human Services & Harries [2010] FamCA 1129 DJLv Central Authority (2000) 201 CLR 226; Director -General, NSW Department of Community Services & JLM (2001) FLC 93-090 DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 State Central Authority and DB [2002] FamCA 804 State Central Authority; Department of Human Services and Krobas [2013] FamCA 450 State Central Authority & Perkis [2010] FamCA 649 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Koehler |
| FILE NUMBER: | MLC | 1296 | of | 2014 |
| DATE DELIVERED: | 30 May 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATES: | 30 April & 1 May 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wilson |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Ms Carter |
| SOLICITOR FOR THE RESPONDENT: | Testart Family Lawyers |
ORDERS
IT IS ORDERED THAT
Paragraphs 4 and 5 of the orders of Justice Cronin dated 18 February 2014 be discharged.
The State Central Authority’s Form 2 application filed 12 February 2014 be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing.
IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Koehler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 1296 of 2014
| STATE CENTRAL AUTHORITY |
Applicant
And
| Ms Koehler |
Respondent
REASONS FOR JUDGMENT
On 12 February 2014 the Secretary to the Department of Human Services representing the State Central Authority filed a Form 2 application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) seeking an order for the return of the child N, (“the child”) born in 2008 to her habitual residence in Germany.
The requesting parent in this case is the father MR KOEHLER who lives in Germany. The respondent to this application is the mother MS KOEHLER.
It is submitted on behalf of the State Central Authority that the child has been wrongfully retained in Australia. This is not disputed by the mother however it is the mother’s case that the Court should exercise its discretion not to make an order for the child’s return to Germany on the basis that there is a grave risk that her return to Germany, where she was habitually resident prior to her retention in Australia, would expose her to psychological harm or otherwise place her in an intolerable situation.
The issues I must determine therefore are whether the child’s return to Germany would expose her to a grave risk of psychological harm or place her in an intolerable situation, enlivening the Court’s discretion not to order her return, and, if so, whether the Court should exercise its discretion not to order her return.
BACKGROUND
The father, who is a German citizen, is 61 years of age. The mother, who is an Australian citizen, is 35 years of age.
The father and the mother met in Asia in or about 2001. They commenced a relationship in July 2003 and were married in October 2006. The father was previously married and has one adult child of that marriage who resides in Sydney.
The child was born in Germany and has both German and Australian citizenship.
The father and mother arrived in Australia with the child on 21 December 2013. There is no dispute that at that time they intended to return to Germany and had flights booked for 12 January 2014.
It is common ground that on 26 December 2013 the mother told the father that she wished to separate and to remain in Australia with the child. The mother’s family called the police following which the father had to leave the mother’s sister’s home where they were staying. The child remained with the mother. On 27 December 2013 the mother applied for and obtained an Interim Intervention Order against the father at the Magistrates’ Court.
On 28 December 2013 the father left Australia and returned to Germany leaving the mother and the child in Australia. On 8 January 2014, following his return to Germany, the father signed a request for return which set in train the proceedings now before me. The father has also instituted proceedings in Germany in which he seeks orders for “custody” of the child.
LEGAL PRINCIPLES
The Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) provide the legislative basis in Australia for the Convention on the Civil Aspects of International Child Abduction referred to for convenience as the Hague Convention. The objects of the Convention are to:
(a)secure the prompt return of children wrongfully removed or retained in any Contracting State; and
(b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
It is those objectives which are embodied in and given effect to by the Regulations. There is in the case of an application pursuant to the Regulations a distinction between the return of a child to his or her country of habitual residence and orders which place the child in the care of one or other of his or her parents: DJLv Central Authority (2000) 201 CLR 226; Director -General, NSW Department of Community Services & JLM (2001) FLC 93-090.
Regulation 16 (1) provides that the Court must order the return of a child if:
(a) an application is made for the return of that child;
(b)that application is filed within one year after the child’s removal or retention; and
(c)the State Central Authority satisfies the court that the child’s removal or retention was wrongful as defined in subregulation (1A).
Regulation 16 (1A) provides as follows:
For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
The State Central Authority bears the burden of proving that the removal is wrongful as defined in subregulation (1A). The mother concedes that the child has been wrongfully retained in Australia. The mother’s concession enlivens the Court’s power to make a return order subject to the provisions of regulation 16(3) which provides that the Court may refuse to order the return of the child if the person opposing that return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
It is inherent in the nature and purpose of the Hague Convention and the Regulations which are intended to achieve the speedy return of children wrongfully removed from their habitual residence that those proceedings will be dealt with expeditiously. That is clear from the Regulations themselves which require the Court, so far as is practicable, to give an application such priority as will ensure that it is dealt with as quickly as a proper consideration of each matter allows (regulation 15(2)). Regulation 15(4) further provides that in the event that an application is not determined within a period of 42 days after that application is made, the responsible Central Authority may ask the Registrar of the Court to state in writing the reasons that the application has not been determined within the specified period.
Notwithstanding that the requirement that the application should be dealt with expeditiously in most cases necessitates the adoption of a summary procedure, the High Court in De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 (“De L v Director General”) warned against the need for expedition resulting in an insufficient hearing of the issues in dispute. Some cases will lend themselves to a summary hearing more than others and it is often a question of the issues in dispute in each case that will determine the appropriateness or otherwise of the witnesses in the case being either given leave to give oral evidence or being required for cross-examination.
PROCEDURE AND EVIDENCE
On 8 January 2014 the mother filed an initiating application in the Federal Circuit Court of Australia seeking orders for property settlement and parenting orders, including an order that she have sole parental responsibility for the child, that the child live with her, that in the interim the father spend time with the child each Sunday from 10.00 am until 5.00 pm, that both she and the father be restrained from removing the child from the Commonwealth of Australia and that the child’s name be placed on the Airport Watch List. The mother’s application was transferred to this Court on 21 January 2014. Although the application of the State Central Authority was issued after the mother’s initiating application it takes precedence and must be determined prior to the hearing of the mother’s application.
The State Central Authority’s application was listed for hearing on the first occasion on 18 February 2014. On that date Cronin J made orders adjourning the matter for mention before me at 9.00 am on 21 March 2014, that the mother file and serve a response and any affidavits in support thereof by no later than 4.00 pm on 11 March 2014, that paragraph 2 of the orders made by Judge Hughes in the Federal Circuit Court on 21 January 2014 be amended to have the child’s name also referred to as “[a different spelling of the child’s surname]”, that the passports of the mother and child be handed to and held by her solicitor pending further order, that the mother be restrained until further order from leaving the State of Victoria, and that her application filed 8 January 2014 be adjourned to the mention date on 21 March 2014.
On 21 March 2014 the State Central Authority’s application was set down for a two day hearing.
In this case the State Central Authority relies upon the Form 2 application and the documents annexed to that application which include the following:
· Attachment marked with the letter A, Request for Return Application dated 8 January 2014;
· Attachment marked with the letter B, affidavit of the father dated 14 January 2014 with attachments;
· Attachment marked with the letter C, bundle of documents filed in proceeding MLC 116/2014;
· Attachment marked with the letter D, document entitled extract from birth registration for the child;
· Attachment marked with the letter E, Authority to Act dated 8 January 2014;
· Attachment marked with the letter F, extract from the marriage registration; and
· Attachment marked with the letter G, document entitled Application and Summons for An Intervention Order dated 27 December 2013.
Although counsel for the mother initially indicated that she had some objections to the evidence relied upon by the State Central Authority she ultimately submitted that it was a matter of what weight should be given to that evidence save and except for the one document annexed to what was described in the affidavit of Ms B filed 10 April 2014 as the father’s affidavit which appeared to be a factual and legal submission by the father’s German lawyer, Alexander Ganz. This document was struck out by consent.
The mother relies upon her Form 2A response filed 28 March 2014, her affidavit filed 17 March 2014, the affidavit of the mother’s mother Ms D filed 17 March 2014, the affidavit of the mother’s sister Ms C filed 17 March 2014, the affidavit of her psychologist Ms A filed 19 March 2014, and the affidavit of Dr E, a psychiatrist engaged by the mother to prepare a report, filed 16 April 2014.
Counsel for the State Central Authority sought leave to cross-examine the mother and both Dr E and Ms A but did not require either the mother’s mother or her sister for cross-examination.
Dr P, the family consultant, was cross-examined by both counsel for the State Central Authority and counsel for the mother.
DIRECT JUDICIAL COMMUNICATION
As noted by the Court on 1 May 2014 the parties consented to direct judicial communication via the International Hague Network of Judges in relation to the following matters:
a)the nature and the status of the current proceedings instituted by the father in Germany and whether the proceedings are consolidated or dealt with separately;
b)whether any interim orders have been made to date;
c)the availability or not of state assisted legal aid for proceedings of this type;
d)the availability or not of restraining orders to protect the mother;
e)the likely timeframe of the current proceedings and any application by the mother to relocate to Australia with the child; and
f)whether any application may be made for expedition of those proceedings.
A response to that request was received by email on 13 May 2014. The parties consented to the chain of emails being admitted into evidence. The email from the German Hague Network Judge by way of reply was as follows:
Dear [redacted] dear colleague
I just called the competent judge, [redacted] [who] told me that:
1 a) Divorce proceedings are pending, file number 1 F 1/14, and connected to the divorce (sic) an application of the father for sole custody.
Moreover together with the divorce proceedings in Germany the court has to decide about the division of pension rights. A first hearing is scheduled for 20 May, but [it] seems that the mother will not come to that hearing to the German court. This means, because the spouses don't agree on the moment of separation, that the wife has to be heard personally. One possibility may be taking evidence by way of judicial assistance in Australia. As long as it is not proved that the spouses have been living separately for at least one year it is in general (sic) not possible to be divorced under German law, § 1565 II BGB.
The decision about parental responsibility makes it necessary that mother and child can be heard by the German court. The report of the youth welfare office, which the court is obliged to ask for, has already been sent to the court, but of course it is one- sided (sic), because they could talk only to the father.
When the parents don't agree normally the child will be represented by a guardian ad litem, who as well has to talk to the child and to the mother. Potentially the court may decide that a written expertise (sic) by a family psychologist may be necessary.
The decision on division of pension rights, which has to be done in an interlocked system with the divorce (exceptions are possible, on discretion of the court) normally takes several months, because complicated investigations are necessary. Until now the German court has not received the standard forms which the wife has to fill out and due to that the court cannot start its investigations. When the German court would come to the end that the spouses haven't lived separated for at least one year it will last even longer.
b) Spouses and child maintenance proceedings are pending, file number 1F 93/14.
The application has been made by the mother and has already been served to the father. A date for a hearing has not been fixed yet, because of the absence of the applicant.
2. Interim orders have not been made.
3. Legal aid is generally available for all kind of proceedings. It depends on the earnings and assets of the applicant and in addition on the chance of success of the application (means and merit test).
4. Restraining orders could be done on request of the mother, but the application has to be substantiated.
5. Any application of the mother for relocation to Australia will make it necessary that mother and child are available in Germany for more investigations by the German court. You wrote, that the mother is suffering from depression, that means that the decision with whom the child shall live in future may be difficult. The competent judge told me, that the father argued in his application for sole custody that he has been the primary caretaker[.]
In the case the parents would agree on the further habitual residence of the child the proceedings could be short.
6. I don't know exactly which proceedings shall be accelerated. Concerning the divorce and combined proceedings see above[.] For me it seems that all proceedings could be accelerated if the Mother and [the child] would come to Germany.
I hope these (sic) information will help, please don't hesitate to ask again.
I have set the competent German Judge "cc".
Best regards from Germany,
[redacted]
Network Judge:
European Judicial Network and International Hague Network of Judges
ASSESSMENT OF THE EVIDENCE
The standard of proof in accordance with s 140(1) of the Evidence Act 1995 (Cth) is the balance of probabilities.
Although this was not a matter that in any real sense turned on credit I was assisted by having the opportunity to observe the mother in the witness box. The mother presented as a competent and thoughtful witness, although somewhat overwhelmed by the whole experience. Her emotional and mental fragility was also obvious. She appeared to make an effort to answer questions thoughtfully, comprehensively and most importantly honestly. She made concessions when it was appropriate to do so. I am satisfied that she was a truthful witness.
The evidence of the expert witnesses was in each case clear and considered. They seemed to be largely in agreement albeit they reached somewhat different conclusions, particularly Dr P as to the risk to the child in the event that the mother’s mental health deteriorated and what if anything might be done to ameliorate that risk. I found Ms A’s evidence particularly helpful given the number of sessions she has had with the mother and the considerable period of time over which she has treated the mother. The involvement of both Dr P and Dr E on the other hand was limited to their assessments of the mother for the purposes of these proceedings. I was also assisted by Dr P’s observations of the child and of her relationship with the mother.
The child’s care
It is the mother’s case that she has always been the child’s primary caregiver. Although the father disputed that this was the case his evidence suggests not that he is disputing that the mother has been the child’s primary carer but the fact that the mother is suggesting he does not have a close relationship with the child.
It was conceded by Ms Wilson on behalf of the State Central Authority that there was certainly evidence which supported the mother’s assertion that she was the primary caregiver, including:
· that she had worked part-time whereas the father had worked full-time;
· that although there was a dispute as to the amount of travel the father was required to do it was common ground that when he did travel for his work the child remained in the mother’s care; and
· that on a previous trip to Australia the father had returned to Germany after a few weeks, leaving the child in the mother’s care in Australia for approximately three months.
The evidence of Dr P, the family consultant, also supported the mother’s assertion that she was the child’s primary carer without in any way suggesting that the child did not have a close and loving relationship with her father. Dr P said as follows:
… [The child] reported that her closest relationship is with her mother. This must be understood in the context of [the child] not having seen or communicated with her father in nearly four months, an experience that is likely to impact on the report of a five-year-old child given her developing memory and sense of time. However, [the child’s] reasons for preferencing her mother was related to her experience that, though she did many fun things with her father, her mother was responsible for the majority of the care-giving tasks whilst in Germany and she spent more time with her. Nevertheless, [the child’s] report and affect when speaking about her father was loving and warm, suggesting that this too is a close and loving relationship.
It was Dr P’s opinion that “[i]f [the child] is ordered to return to Germany, it is clearly in her best interests that her mother accompanies her.”
I am satisfied that the mother is and has been the child’s primary caregiver, however I am also satisfied that the father has, or at least had until his return to Germany on 28 December 2013, a close and loving relationship with the child. However, the father has not telephoned the child or used any other means of contacting her since his return to Germany. This, as Dr P noted, is likely to have impacted on his relationship with the child.
The mother’s health
It is the mother’s mental health and how that might impact upon the child in the event that she were to accompany the child to Germany which is the central issue in this case. The history of the mother’s mental health issues is set out in both the affidavit she filed on 8 January 2014 in support of her initiating application (which was an attachment to the From 2 Application filed by the State Central Authority) and the affidavit she filed 19 March 2014 in these proceedings, the affidavits of both her mother and her sister, and as reported by the mother to the expert witnesses. Although the mother was cross-examined, her evidence about her mental health was not the subject of challenge in any real sense. The evidence of the mother’s mother or her sister was not challenged.
The mother deposes that she has suffered from depression and anxiety since at least 2007 albeit she was only formally diagnosed with depression in early 2011. She deposes that “[i]n 2007, my emotional and physical state deteriorated. I lost a lot of weight, and I started feeling physically exhausted.” She deposes that she “felt increasingly inadequate as a wife and mother. I started to have difficulties getting out of bed on the weekends in particular, and I just wanted to sleep all the time. I had no appetite. I burst into tears often, for no reason. I often felt frightened and worried about everything. I was absolutely miserable. I felt trapped, and alone, vulnerable and completely hopeless about the future.” The mother’s sister Ms C deposes that she spoke frequently to the mother during this period and that the mother "continued” to tell her how “desperately sad and lonely she was” and that “[s]he cried almost every time we spoke. She told me she didn’t feel like eating and she was losing weight.”
The mother and the father travelled to Australia with the child in December 2010. Ms C described the mother upon her arrival in Australia on that occasion as “thin and frail” and said she was “very underweight” and “all hunched over”. She also deposes that the mother was frequently in tears during that visit and that it was very obvious to her that the mother “wasn’t coping, she was extremely stressed and anxious and that she needed professional help”. Ms C said the husband returned to Germany after approximately three weeks and the mother and the child remained in Australia for three months in total. Both the mother’s mother and sister describe taking the mother to their general practitioner who diagnosed the mother with depression, prescribed antidepressants for her and referred her to a psychologist. That psychologist was Ms A.
Ms C deposes that after the father returned to Germany, during the time that the mother remained in Australia with the child she “slowly started to pick up emotionally, and physically. Her appetite was increasing and she gradually became less tearful.” This is consistent with the mother’s evidence that she began to start feeling a little better during this time.
Although the mother deposes that while in Australia in early 2011 she engaged a solicitor to act on her behalf and told the father that she intended to separate and wanted to remain in Australia, she also deposes that the father begged her to return to Germany and that she reluctantly agreed to do so after the father promised to change. The mother asserts that upon her return to Germany the father was unsympathetic and dismissive of her illness and did not support her having treatment or medication and refused to help her find a psychologist so that she could continue the treatment she had commenced in Australia. It is her evidence that as a result of the father’s attitude she felt that she had no option but to abandon taking her medication or seeking any therapy. It is not necessary to make a finding as to why the mother returned to Germany or whether the father begged her to return. What is relevant for the purposes of the decision I must make, given the evidence of the expert witnesses of the likelihood of her mental health deteriorating if she returns to Germany, is what impact her return to Germany at that time had upon her health.
The mother deposes that by the European summer of 2012 she was again “exhausted, suffering from frequent, debilitating headaches, and pains throughout my body” and was “anxious and depressed.” Ms C deposes that she noticed the mother’s emotional state deteriorating again and that she was again “teary, sad, anxious and overwhelmed by everything whenever I spoke with her.”
The mother’s mother deposes that she visited the mother in Germany in September 2012. She described the mother as “extremely underweight” and said that she “looked terrible". With her mother’s assistance the mother attended two appointments with a psychologist at a women’s shelter near her home and attended upon a doctor who prescribed antidepressants. The mother deposes that although she continued to take the antidepressants the father did not approve of her having treatment and so she did not attend any further appointments with the psychologist.
The mother deposes that “without the support of my family, and without the assistance of a psychologist or any emotional supports, I was at a particularly low point in my depression throughout 2013.” She said that she was told by her employer that her work performance was deteriorating and that she looked terrible and that it was suggested she take time off work to concentrate on her health. Throughout 2013 she said that she “had frequent anxiety attacks, was experiencing feelings of intense fear and worry, my heart would often race, and I would feel out of breath. I wanted to sleep all the time, I wasn’t eating, I found it difficult to concentrate, and I frequently burst into tears. I found it more and more difficult to function. I even stopped contacting my family.” She further deposes that when the father was home on weekends, that she “often stayed in bed, leaving him to care for [the child], as I felt unable to do so. I continued to care for [the child] during the week, but often felt withdrawn from her.”
Ms C deposes that when she visited the mother in August 2013 she was “very emotionally fragile, crying a lot and not eating or sleeping properly.”
The mother’s mother said that when she returned to Germany in October 2013 the mother “cried constantly during my visit. She was painfully thin. She struggled to get out of bed.” This is consistent with the mother reporting to Dr E that although her normal weight was 60 kilograms, by the time she returned to Australia in December 2013 she weighed only 50 kilograms. Dr E’s evidence was that the weight loss described by the mother was a “significant amount of weight loss and is an indication of the depth of her depression”. It was his evidence that significant weight loss is often viewed as an objective sign of depression.
The mother deposes that when she arrived in Australia in December 2013 she was “exhausted, sad all the time, not eating, anxious and withdrawn.” Following the father’s departure on 28 December 2013 the mother’s mother arranged for the mother to attend upon her general practitioner who increased the dosage of the antidepressants she was taking and recommended that she start seeing Ms A.
The mother’s mother and her sister also depose that in addition to arranging for the mother to receive appropriate treatment they have provided the mother with both physical and emotional support. The mother deposes that she is “gradually feeling increasingly better” and said that she is “taking better care of myself, am feeling more confident, and am able to be more engaged with [the child].” This is confirmed by the mother’s mother and her sister, however they also depose, as does the mother, that she is again anxious and depressed in the face of the possibility of having to return to Germany.
Dr P described in her report that, when asked how her mother felt, the child’s response was, ‘“[i]n Germany sick, crying, here sick but a little bit better.” The child ‘reasoned this was due to “when she’s with her mum and her family, she has good times, she’s not more crying.”’ Dr P further described the child as saying, “[s]ometimes when I’m thinking of my mum and feeling sad, I sing softly and I feel a little better.”
The mother both in her affidavit and in cross-examination referred to a number of factors which she said had impacted upon her mental health. They included, but are not limited to, the following matters:
·that she was a victim of family violence perpetrated by the father;
·that the father regularly got drunk and when drunk abused the mother;
·that the father has emotionally and psychologically abused the mother in front of the child including calling her names and putting her down and contradicting her in front of the child;
·that the father controlled the mother’s access to money;
·that the father repeatedly told the mother that she should be institutionalised and that the child will get over the loss of the mother;
·that the father was critical of the mother’s family and isolated her from her family, limiting her access to the computer and preventing her from using Skype to maintain contact with her family; and
·that the father made it difficult for her to make friends in Germany.
The mother also described being socially isolated in Germany, initially speaking no German, not being permitted to work and, even after obtaining employment, that employment not being commensurate with her academic qualifications.
Although the father disputes the cause of the mother’s depression and what she says about his conduct both in relation to the cause of that depression and his attitude to her when she was depressed he does not however dispute that she was depressed.
The State Central Authority’s case was not that the mother was not and had not been depressed, but that she had not met the burden of proving that there was a grave risk that the child would be exposed to psychological harm or placed in an intolerable situation, particularly in light of the safeguards that might be put in place or conditions that might be imposed if a return order were made. In any event, whether the mother’s evidence with respect to the cause of her depression is accurate, I am satisfied, having heard the evidence of the mother and the expert witnesses, that whatever factors led to her depression it is now the mother’s perception of her experience in Germany and how that is likely to impact upon her in the event that she must return to Germany that is likely to trigger a further major depressive episode.
The mother attended upon Dr E for the purposes of a psychiatric assessment. In his report he said that from a psychiatric point of view the mother presented as someone with:
· a dependent personality albeit, that it was his evidence that this related to her adult relationships rather than her personality generally;
· Major Depressive Disorder, in partial remission; and
· Generalised Anxiety Disorder, in partial remission.
Ms A, who had the benefit of having treated the mother both in 2011 and again since her recent return to Australia, described her presentation as follows:
[The mother] presented to counselling in a somewhat fragile and emotional state. She appeared anxious and upset. Her speech was clear and articulate although the pace was at times hurried, particularly when she was describing events which she had experienced as stressful or upsetting. She was physically well presented and neat in appearance, although she wore little make-up, and appeared somewhat tired, pale and thin, consistent with a person experiencing chronic emotional distress.
Ms A’s observations of the mother’s presentation were consistent with my observations of her in the witness box. Ms A also administered a series of psychometric tests to assess the mother’s level of stress, depression and anxiety. The results of that testing were as follows:
The DASS (Depression, Anxiety and Stress Scale) indicated that [the mother’s] depression and stress were both rated as severe when compared with other adults, and her level of anxiety was rated as extremely severe when compared to other adults. The BDI-II (Beck Depression Inventory - 2nd Edition) supported these findings with an indication that [the mother’s] depression was rated as severe when compared with a general adult population, and was at the upper end of the scale, and therefore close to being rated as clinical depression.
Further, she said that it was worth noting that “[the mother’s] depression and stress scores were consistent with the previous administration from 2011, however her anxiety had increased significantly from being in the moderate range to now extremely severe.”
It was Ms A’s opinion that:
... it is clear from these results and her presentation during the sessions that [the mother] is suffering from Severe Depression and Extremely Severe Anxiety. Whilst [the mother] does not meet all of the criteria for a diagnosis of Post Traumatic Stress Disorder or Acute Stress Disorder, she does exhibit Features of Trauma …
In addition, [the mother] meets the criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-V 309.28). An Adjustment Disorder occurs when an individual is unable to cope with a particular stressor, in this case the emotionally abusive relationship and social isolation.
In her report Dr P described the mother as “neatly groomed and alert. Her affect was appropriate to the situation and content of interview, with normal range and intensity. Her attitude was cooperative. Her speech, thought form and process, attention and behaviour were all normal. She impressed as a woman of above-average intelligence.” Although in cross-examination she agreed that the mother was vulnerable to “having a further major depressive episode” and in her report agreed with Dr E that “there is compelling evidence that [the mother’s] mental health may deteriorate if she returns to Germany”, Dr P also referred to Dr E’s evidence that the mother has a favourable prognosis if she is “not exposed to constant psychological abuse.” Dr P also said that:
If ordered to return, [the mother] could be assisted by practical arrangements (such as securing independent accommodation, ensuring she has access to necessary finances to provide for herself and [the child]) and to limit the contact between the parents and any alleged control or abuse. Whilst the maternal family appears to provide [the mother] with significant support, if she is living independently from [the father] there appears to be no reason why she would not be able to access the support regularly via telephone and videophone. Likewise, there appear to be no obstacles to [the mother] accessing similar support services in Germany as she has found in Australia.
Both Dr E and Ms A acknowledged that although a return to Germany might be expected to be less stressful for the mother in circumstances where she was no longer in a relationship with the father and if arrangements were put in place to address her concerns about her financial support and accommodation, the issue in this case is the mother’s emotional reaction to a return to Germany. Dr E’s evidence was that should the mother return to Germany, she “would likely suffer ongoing anxiety and depression whether she is with (the husband) or not”.
Both Ms A and Dr E gave evidence to the effect that it was the association with Germany, based upon the mother’s negative experience of life in Germany generally, which would trigger her anxiety and depression if she were to return. It was Ms A’s evidence that:
Germany now represents a very traumatic experience for her where she has felt very isolated, very afraid, very marginalised, very undervalued … and it is a trauma response that as soon as you are put back into that environment all of those triggers flare again.
In response to a question from counsel for the State Central Authority as to whether the impact upon the mother would be less if she were only required to return to Germany for a short period, Ms A by way of example compared the mother’s situation to someone who had been in a bank robbery and the distress that person would experience at having to go back into a bank even for two minutes. It was Ms A’s evidence that it was the emotional trauma experienced through a return to the environment rather than the timeframe of that return that would be relevant.
All three experts also acknowledged that although stressors such as the unhappy relationship with the father might not be an issue they would be replaced by other issues, such as the difficulty the mother might experience as a single parent, her reduced employment opportunities, and the stress of the litigation in Germany.
I am satisfied that in all of the circumstances of this case it is not possible to fashion safeguards which would adequately protect the mother from a major depressive episode and ultimately the child from the effects of a deterioration in her mother’s mental health. I will turn to the impact of the mother’s depression upon the child later in these reasons.
Dr P observed that the mother had significant insight into her mental health issues and referred to her being able to access mental health support services in Germany. However, I have had regard to the fact that Dr P has only seen the mother when she has had treatment in Australia and her mental health has improved, and it was Ms A’s opinion, which in my view has some force, that the confidence currently exhibited by the mother is not a true indication of what would happen if she were to return to Germany.
I have taken into account that there are likely to be similar mental health services available in Germany, and in fact the mother, with the assistance of her mother did whilst in Germany find a doctor, was prescribed antidepressants and briefly attended upon a psychologist. However, it is the mother’s case, which she says is corroborated by the history of this matter, that she did not access those services in Germany until she had the support and assistance of her mother and, for that matter, in Australia until she had both the emotional and physical support of her mother and sister.
I am satisfied having regard to the evidence of both Dr E and Ms A that, notwithstanding the mother’s insight into her mental health issues, her anxiety and depression are themselves likely to inhibit her capacity to seek assistance to address those issues, and although Dr E did say that it would be possible to increase the dosage of the mother’s antidepressant medication and that if she were to return to Germany it would be wise to do so, it was also his evidence that there was in any event a significant likelihood that her mental health would deteriorate.
Dr P said that she was not able to give evidence in relation to the likelihood of the mother experiencing a major depressive episode without further assessment, whereas Dr E put the probability at what he described as a “high risk”, being well over the 50 to 60 per cent mark, and Ms A said that it was highly likely. I am satisfied that it is more likely than not that there is likely to be a significant deterioration in the mother’s mental health in the event of her return to Germany.
GRAVE RISK OF HARM
The way in which regulation 16(3)(b) is to be interpreted was settled by the majority of the High Court in DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401. Their Honours Gaudron, Gummow and Hayne JJ said as follows:
39.… If it would expose the child to a grave risk of physical or psychological harm, or an intolerable situation, the discretion to refuse to make an order for return is enlivened. It is for the Australian Court to decide whether return would expose the child to that risk. Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to the inquiry. Often enough the answer to a claim of grave risk will be that the feared harm will form a central issue in subsequent judicial proceedings in the country of return. But it is important to notice that this answer has two parts: first, that there will be judicial proceedings in the country of return and, second, that the feared harm which is alleged can be a matter relevant to those proceedings. Both parts of that answer are important if it is to meet a contention that return will expose the child to a grave risk of harm.
40.… There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established.
41.… Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed all retained to inquire into the best interests of the child. The exception requires courts to make the kind of enquiry and prediction that will inevitably involve some consideration of the interests of the child.
42.Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description "grave". Leaving aside the reference to "intolerable situation", and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43.Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
…
45.That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will occur, and may well be magnified, by having to return to the country of habitual residence. Reg 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return. [Emphasis in original]
The risk to the child
Although I am satisfied having regard to all of the evidence that there is a very grave risk that there will be a significant deterioration in the mother’s mental health in the event that she returns to Germany, the determining factor in this case is the gravity of the risk to the child and not the risk to the mother.
It was Dr P’s evidence, having had the opportunity to observe the child, that the child was aware of the mother’s anxiety and depression and has made the connection between, as she says, “mum being sick and crying” and her mother living in Germany. Dr P reports that the child is a child who is “attuned to changes in her mother’s mood and noticed that her mother was sad in Germany.” Dr P describes the child as “quite a perceptive five year old” and that the child feels that being in Australia has made her mother “less sick”. The child reported to Dr P that her mother is someone who gets sad and sick, and while Dr P noted that she does not view her mother’s illness “in such a way as to be so impairing that her needs are not met by her mother”, that the child has considerable understanding of her mother’s illness and told her that “my mum is very sick, she has been to lots of doctors and no one can fix it. I hope you can help her.”
All three experts agreed that the mother’s depression and anxiety would be likely to impact upon her parenting capacity. Ms A’s evidence was that the mother’s anxiety would be likely to lead to her being “withdrawn, irritable, emotional, teary and fragile and potentially disconnected” from the child, and if not disconnected, then the mother may possibly “find herself becoming more dependent on [the child] and potentially the child takes on the care giver role in that situation … which would be inappropriate in a child of [the child’s] age.” Ms A noted that the mother reports that when she was at her lowest point in late 2013 and early 2014 that the child was “exhibiting difficult emotional behaviour”, that she experienced tantrums, was angry, hostile and acted belligerently. Ms A commented that the child’s behaviours at that time are all examples of anxiety in a child of that age.
Dr P described the possible impact on both the mother’s physical and emotional parenting capacity including that the mother might lack the energy to engage in normal parenting tasks, such as being able to prepare meals and get the child to school on time, and that emotionally she might be pre-occupied with her own experiences, develop a negative outlook and be unable to show positive emotion or interact positively with the child. Dr P opined that given the child is “a perceptive five year old who is attuned to changes in her mother’s mood” the impact of the mother’s emotional unavailability could lead to the child experiencing difficulty obtaining the emotional support that she would need, internalising and blaming herself or alternately externalising, which could lead to her having behavioural issues.
Dr P in her report and in her oral evidence took some comfort from the fact that:
Even if [the mother’s] mental health deteriorated to an extent that she was unable to provide care for [the child], the writer finds it improbable that a woman of [the mother’s] intelligence and maternal nature would not seek support to prevent any risk of harm to [the child]. It is expected that [the child] would be enrolled in school and her usual activities, increasing the likelihood that any significant changes in [the mother’s] mental health or risks to [the child] would be identified and managed. [The mother] impressed as highly motivated to retain primary care of [the child] and therefore is likely to make use of all of the resources available to her in Germany to enable her to do this.
However, Dr E’s evidence was that “there would be a significant impact on [the mother’s] parenting capacity” from the effect of her symptoms of depression. When asked by counsel for the mother to consider whether the mother’s ability to seek help for her depression might ameliorate the impact on her capacity to parent the child, Dr E’s evidence was that “if you’ve got a mother who is significantly depressed that in itself is going to cause the child to have some emotional difficulties” and that whilst the mother may seek help “it is better that we don’t have a depressed mother. If she’s not functioning at all well that has an effect on [the child] as well, regardless of whether [the mother] is seeking help”. Further it was Dr E’s view that when she is not depressed the mother may be resourceful with respect to her mental health but that “when she is depressed she is much less resourceful.”
Ms A’s evidence was that if the mother returned to Germany, she was “not confident that [the mother] would be able to effectively seek support, and if she did seek support [Ms A did not] believe that it would be enough to support her to the extent that she needs, to care for her daughter.”
Dr P also said that the mother “presented [the father] as a man who has a close and loving relationship with [the child] and raised no significant risk issues that would preclude him assuming primary care in the event that [the mother] was unable to provide this.”
In my view, the risk to the child is the psychological risk of experiencing the deterioration of her mother’s mental health. I am satisfied that even if the mother is well intentioned, the impact of her increasing anxiety and depression is likely to overwhelm the best of intentions. Notwithstanding that the mother is a responsible and well intentioned parent she was not able, without the assistance of her mother and sister and upon her return to Australia, to obtain the psychiatric or psychological assistance she required.
The fact that the father might be able to assume primary care of the child in the event that the mother did seek his assistance would not, in my view, lessen that psychological risk to the child in the event of a deterioration of the mother’s mental health. In fact, her removal from her mother’s care in circumstances where her mother was unable to care for her would likely be a very traumatic experience for the child.
I am satisfied that the likely deterioration in the mother’s mental health if she were to return to Germany would expose the child to a grave risk of psychological harm and otherwise place her in an intolerable situation.
AUTHORITIES RELIED UPON BY THE PARTIES
Both counsel for the State Central Authority and the mother referred me to a number of authorities. Whilst each of these cases was determined on the basis of their unique set of facts there were, at least in relation to the cases relied upon by the mother, some similarities.
The first of the cases I was referred to by counsel for the mother was State Central Authority & Perkis [2010] FamCA 649. In this case, Bennett J, referring to the earlier cases of Director-General, Department of Families, Youth and Community Care and Bennett (2000) FLC 93-011 and Re G (Abduction: Psychological harm) [1995] 1 Fam Law R 64, said as follows:
The depression described by Dr K does seem less severe than the psychosis of the mother in Re G (Abduction: Psychological Harm) or the potential suicide of the mothers in JLM v NSW Department of Community Services and Director-General, Department of Human Services and RSP.
…I largely accept Dr K’s evidence. I accept that the mother is genuine in her resolve to accompany the child in the event he is ordered to be returned to New Zealand and that she will do so in order to maintain her role as his primary care giver. I accept that the adverse consequences to the mother’s mental health will take hold and impact on the child as a result of them returning to New Zealand. That is, the immature and fragile aspects of her personality will come to the fore, she will withdraw into herself and become more emotional, she will cope poorly, likely develop an extreme depressive response to her predicament and, quite possibly, experience greater levels of depression than previously. The child will receive less than “optimum care” from the mother.
Her Honour refused to order the return of the child to New Zealand, notwithstanding that there was no suggestion that the mother was currently suffering depression, but because of the evidence that she was “likely to ‘decompensate’ within a matter of days or weeks of having to return to New Zealand”. As her Honour pointed out, “the gravity pertains to the risk rather than to the harm or the intolerable situation.”
The second case to which I was referred was Director-General, Department of Human Services & Harries [2010] FamCA 1129. This was a case in which Le Poer Trench J found that should the “mother suffer from the depressive phase of her bi-polar condition and that phase not be brought under control quickly then the children’s relationship with their mother could be significantly affected.” His Honour found that although the “mother has not suffered another episode of her mental illness, however, she is at her least vulnerable in her current circumstances.” Similarly, in this case his Honour declined to order the children’s return.
The cases to which counsel for the Sate Central Authority referred me, whilst emphasising the weight of the burden imposed upon the mother to establish the gravity of the risk to the child, tended in my view to highlight the distinction between those cases and this case. They included State Central Authority; Department of Human Services and Krobas [2013] FamCA 450 in which Cronin J ordered the return of the child to Greece in circumstances where the mother had said that she would not under any circumstances be returning to Greece with the child. His Honour found in that case that “the child will be fine with the absence of the respondent depending on how the transition is handled”. His Honour also said at paragraph 106 as follows:
I accept that the inability (as distinct from a refusal) of the opposing parent to return to the child’s country of habitual residence could cause an intolerable situation for the child (see Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011; [2000] FamCA 253) but I do not accept that that is the situation here. The standard of care proposed by the father seems adequate so I could not find that returning the child to Greece would be intolerable on that basis. On my findings on the evidence here I could also not find that the respondent’s refusal to return to Greece arises from a well-reasoned fear of exposure of the child to violence between the parents (see Department of Community Services & Harris [2010] FamCA 261). Based on those findings, the Court must be cautious against accepting a situation in which the parent has created the psychological problem for the purposes of relying upon it. (see DP per Gleeson CJ at 410).
Both in her written and oral submissions counsel for the State Central Authority referred to DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401, including the following at paragraph 39:
Often enough the answer to a claim of grave risk will be that the feared harm will form a central issue in subsequent judicial proceedings in the country of return. But it is important to notice that this answer has two parts: first, that there will be judicial proceedings in the country of return and, second, that the feared harm which is alleged can be a matter relevant to those proceedings. Both parts of that answer are important if it is to meet a contention that return will expose the child to a grave risk of harm.
Counsel also referred me to paragraph 45 of that judgment in which their Honours referred to it being “well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence”.
Although in this case the mother’s mental health is likely to be the subject of proceedings in Germany in the event that the child is returned to Germany, those proceedings would not in my view address the grave risk of harm to the child occasioned by her return to Germany with the mother in circumstances where it is the return to Germany itself which is likely to trigger a further major depressive episode. In my view, the risk in this case goes well beyond the “disruption, uncertainty and anxiety referred” to by their Honours.
THE EXERCISE OF DISCRETION
The Court, being satisfied that the child’s return to Germany would expose her to a grave risk of psychological harm or otherwise place her in an intolerable situation, has a discretion as to whether to order the return of the child to Germany. It was the mother’s case that I should exercise that discretion in her favour and not order the child’s return.
In State Central Authority and DB [2002] FamCA 804 Kay J summarised the authorities with respect to the Court’s exercise of its discretion as follows:
33. The existence of the Regulation 16(3) defence means that the Court may refuse to order the return of the child under the Convention. This raises the question of the exercise of a discretion. The Regulation offers no express terms as to how that discretion may be exercised. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640; FLC 92-706; 20 Fam LR 390 at CLR 661; FLC 83,456; Fam LR 403:
“if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child's return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]’ enable it to be said that a particular consideration is extraneous [ Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.”
In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:
“(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c) the consequences of the acquiescence;
(a)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”
34. Her Ladyship said:
“56. As to (f), the policy of the Hague Convention undoubtedly weighs heavily in respect of the children's objections. In my view, expressed in Re HB (Abduction: Children's Objections) [1997] 1 FLR 392, it weighs particularly heavily in those cases where children come to visit a parent living here and wish to remain: unless their objections are very cogent indeed, they should return to their primary carer for the dispute about a change in primary care to be settled in their home country. It weighs rather less heavily when the children wish to remain with their primary carer, particularly where, as here, the child has had no contact with the other parent for such a long time.
35. Arden LJ said of the exercise of discretion in the TB case that as the majority were sending the younger children back and that the mother would follow, notwithstanding the wishes of the elder child, the interests of the child dictated that she be forced back as well.
“107 However K is entitled to separate exception under Article 13 by reason of the fact that she is able to express her wishes and objects to return. She is now fourteen and a half years old. … It is important that her wishes should be respected so far as possible but on the other hand since her brothers are to return, the court should consider whether it is right to respect those wishes in those circumstances. More importantly she is close to her brothers and her mother. She has been a source of strength to her mother in the past. Her mother says that at times she does not know how she could cope without K. In my judgment, the likelihood is that her mother will return to New Zealand with A and KI. In those circumstances, despite some dislocation in her education, it is in K's best interest to return also. In so concluding, I reach the same conclusion as Hale J (as she then was) reached on the facts of the case in Re: HB (Abduction: Children's Objections) [1997] l FLR 392, referred to with approval on appeal allowed on another point [1998] 1 FLR 422). Other factors include the fact that she has grown up in New Zealand and has the benefit of her mother's extended family there. Having considered those matters, in my view, in the exercise of discretion effect should not be given to K's wishes and she too should be ordered to return…”
The first of the factors identified by Hale LJ is the comparative suitability of the competing forums to determine the child’s needs. There is, in my view, no question that both Germany and Australia would be suitable forums to determine the child’s future parenting arrangements. Whilst if the matter were to be determined in Germany there would likely be witnesses in Australia who would need to either travel to Germany or give their evidence by electronic means, the reverse would be the case if the matter were to be determined in Australia. I note that the information received by way of direct judicial communication was that “the decision about parental responsibility makes it necessary that mother and child can be heard by the German court […] When the parents don’t agree normally the child will be represented by a guardian ad litem, who as well has to talk to the child and to the mother.” It was not clear from the information received as to whether it would be necessary for the mother and the child to be in Germany to either speak to the guardian ad litem or for the preparation of the report by the youth welfare office.
The matters likely to assume relevance in the event that the matter were to be determined in Australia, having regard to the child’s best interests, include the nature of the relationship between the child and each of her parents and how she can have a meaningful relationship with them both. The mother’s mental health is also likely to be relevant, although I note that Dr E’s evidence as to the mother’s prognosis if she was permitted to remain in Australia was positive.
Not being familiar with the legal system in Germany other than the information provided by way of direct judicial communication, it is difficult to predict with any certainty what orders would be made in relation to the child’s care or whether the mother would be permitted to relocate to Australia with the child. However, I am certain having had regard to the information provided by way of the direct judicial communication that whatever the outcome of the proceedings in either Germany or Australia those proceedings would focus upon the child’s welfare.
Acquiescence was not an issue in this case and is not relevant for the purposes of determining whether the Court should exercise its discretion and not return the child to Germany.
The situation awaiting the child upon her return to Germany, however, is relevant. The mother sought various orders in the event of the child’s return to Germany including that the order for her return be conditional upon the father registering orders in a court of competent jurisdiction to the effect that the child live with her pending determination of the matter in Germany and that the father be restrained from removing or attempting to remove the child from her care. She further sought that the orders be conditional upon:
·the father arranging a two bedroom fully furnished apartment for she and the child within 50 kilometres of Town F in Germany;
·the father paying to her solicitors the sum of 15,200 Euros within 28 days to be held in trust by them and paid out as follows:
i)to pay the costs of one way airfares for she and the child to travel from Australia to Germany; and
ii)the balance to be paid into her nominated bank account upon her arrival in Germany.
·the father signing an irrevocable consent to orders being made against him by a court of competent jurisdiction in Germany in the following terms:
i)the child live with the mother pending further order;
ii)the father not molest, harass, threaten, abuse or interfere with the mother;
iii)the father not knowingly come within 250 metres of the mother, her residence or her place of work pending further orders of the court; and
iv)the father not pursue any form of criminal proceedings or sanctions against the mother arising from her wrongful retention of the child in Australia.
Leaving aside the issue of whether the Court can or cannot make all of the orders sought by the mother, counsel for the State Central Authority submitted that it would not be appropriate for the Court to make the orders sought by the mother requiring the father to secure suitable accommodation for the mother or to pay her the sum of 15,200 Euros. Although counsel for the State Central Authority consented to the other conditions sought by the mother she reserved the right to obtain more detailed instructions from the father. Those instructions were that:
· the father would meet the cost of airfares for both the mother and the child to return to Germany;
· he would deposit a lump sum of 8400 Euros with his lawyer to cover a monthly rental of 700 Euros to be accountable against any amount he might be ordered to pay the mother in accordance with the divorce settlement;
· he would pay monthly child maintenance of 360 Euros pending a decision of the German courts;
· he would pay the mother 360 Euros per month for her support pending the settlement of the divorce case by the German court with such payment to be taken into account against any amount he might be ordered to pay the mother in accordance with the divorce settlement.
The father further proposed, by way of letter addressed to the State Central Authority dated 6 May 2014, as follows:
· that for the first three months following the child’s return to Germany he care for her two days per week and for three weekends a month, after which time the child would spend equal time with he and the mother;
· that the 250 metre “stay away zone” is not practical for changeovers;
· that the parents meet only for the purpose of changeover;
· that both parties are subject to the law and that upon the child’s return it is most likely that the authorities would consider the abduction resolved; and
· that the mother agree that the child attend kindergarten/preschool as before.
It is clear from the further instructions received from the father that even if this Court were to impose conditions upon the father with respect to an order for the child’s return to Germany, the mother would face significant uncertainty with respect to her position upon her return to Germany. I am satisfied that this would likely add to the pressure upon the mother in anticipation of her return.
I am satisfied that in all of the circumstances of this case, even if as submitted on behalf of the mother it is possible for this Court to make all of the orders she seeks, including those orders which she says can be made utilising the provisions of the Family Law (Child Protection Convention) Regulations 2003 (Cth), and although it may in this case be possible to mould conditions which would at least to some degree ease and facilitate the child’s return to Germany, that those orders and conditions would not protect the child from the grave risk to which she would be exposed. It is the mother’s return to Germany which of itself is likely to trigger the deterioration in her mental health. In those circumstances the conditions – assuming the Court determined that it could and should make the orders she seeks – would be unlikely to alleviate what I am satisfied is the “grave risk” to the child.
It is the anticipated emotional effect upon the child of an immediate return to Germany which lies at the heart of the mother’s case. Dr E’s evidence was that he expected the mother, if she had ongoing clinical care, to make a full recovery within approximately six to nine months. This was, however, based upon her remaining in Australia.
Although it was submitted on behalf of the State Central Authority that the child should be immediately returned to Germany subject to the father satisfying the conditions to which I have referred, Dr E was cross-examined by counsel for the State Central Authority both about whether the mother would likely cope better with the return to Germany if she were given some time to consolidate the improvement in her mental health since her return to Australia and whether it would be likely to have less impact upon the mother’s mental health if she knew that her return to Germany was to be for only a limited period. Having regard to the information obtained by way of direct judicial communication there is no way of knowing, even if the matter were to be expedited, how long it would take for it to be determined, or for that matter, whether the mother’s application to relocate to Australia with the child would ultimately be successful. It was in any event the evidence of both Dr E and Ms A that it was the return to Germany itself that would trigger deterioration in the mother’s mental health, and although Dr E’s evidence was that it might take some time for the mother’s depression to “fully develop”, he did expect that it would do so if she returned to Germany. It is the effect of the mother’s mental health on the child which exposes her to the “grave risk” of psychological harm or which places her in an intolerable situation.
The final matter referred to by Hale LJ is the extent to which the purpose and underlying philosophy of the Hague Convention will be undermined in the event that the Court exercises its discretion not to order the child’s return to Germany. In DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 Kirby J said at paragraph 122 that the objects of the Convention are as follows:
1.To discourage international child abduction and retention with its negative impact on children;
2.To make it clear to those who might be tempted to engage in this conduct, so as to secure a chosen forum for the resolution of custody disputes, that their attempt will ordinarily fail; and
3.To institute effective means that will ensure the prompt return of children removed or retained in this way by the observance on the part of the authorities of the country to which the child has been removed (or in which it is retained) of a measure of restraint in what would otherwise be the right or duty of such authorities to investigate painstakingly the facts of each individual case in order to assess the best interests of the child and to determine custody.
The return of children to their habitual residence pursuant to the Hague Convention is mandatory save and except for limited exceptions which enliven the Court’s discretion not to order that return. As previously referred to, the High Court, in considering how that discretion may be exercised in De L v Director-General, observed that “the welfare of the child is properly to be taken into consideration in exercising that discretion”. In this case, it is the welfare of the child and the particular circumstances of the grave risk to her of psychological harm or of otherwise being placed in an intolerable situation to which she would be exposed which are the reasons why an order should not be made for her return to Germany. In my view, refusing to make an order for the child’s return in those circumstances does not undermine the underlying purpose and philosophy of the Hague Convention.
CONCLUSION
I am satisfied that, as conceded by the mother, the child was wrongfully retained in Australia. I am, however, also satisfied that to order the child’s return to Germany, in light of the likelihood of the deterioration in the mother’s mental health, would expose the child to a grave risk of psychological harm or otherwise place her in an intolerable situation.
In those circumstances I propose to exercise my discretion and dismiss the application filed by the State Central Authority on 12 February 2014.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 30 May 2014
Associate:
Date: 30 May 2014
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